More DOJ Malpractice

A misbegotten scheme to boost gun control turns deadly.

Mark Hemingway

July 25, 2011, Vol. 16, No. 42

The Obama administration’s Justice Department has been no stranger to controversy. Attorney General Eric Holder has staked out controversial policies on everything from terrorist detainee trials to the decision not to pursue voter intimidation charges against two New Black Panther party members patrolling a polling place with weapons.

Now a slow-burning scandal at the Justice Department is threatening to become the largest law enforcement debacle in decades. The scandal, dubbed “Gunwalker,” involves the department’s role in knowingly supplying guns to Mexican criminal gangs. Holder has been lucky to avoid taint thus far, but his luck may not hold. Gunwalker could tarnish not just his department but the entire Obama administration.

The scandal was touched off by three pivotal events:

n On December 14, 2010, Brian Terry and three other border patrol agents got caught in a firefight with Manuel Osorio-Arellanes and two other Mexican nationals carrying AK-47 rifles near Mesquite Seep, Arizona. Terry was shot in the pelvis and died the next day.

n On February 15, 2011, U.S. Immigration and Customs Enforcement agents Jaime Zapata and Victor Avila were ambushed while driving on a highway near San Luis Potosi in northern Mexico. Zapata was killed; Avila survived his wounds. The gun used to kill Zapata was traced back to Otilio Osorio, a Dallas-area man known for helping Mexican gangs.

n In May, rumors began to spread that a Mexican military helicopter was forced to land after it had been fired upon in western Mexico by a heavy caliber weapon. The Mexican military later seized some 70 weapons in the accompanying raid—including a .50 caliber rifle, known for its ability to fire long distances and pierce armor. A number of the seized guns were said to have originated in the United States.

To hear the Obama administration tell it, the fact the guns used in these attacks came from the United States should not be surprising. In April 2009, the administration claimed that “90 percent” of the weapons used in Mexican cartel violence originated in the United States, a figure that was also parroted by the Mexican government.

When congressional hearings examined the substance of that claim, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) revealed that figure referred only to guns that the Mexican government handed over to the ATF. Of the total number of guns seized by Mexican authorities, about 8 percent were of U.S. origin.

So in the three attacks mentioned above, it might seem surprising that all would involve guns of U.S. origin. But this turned out not to be coincidental. In fact, the weapons used to kill the two U.S. law enforcement agents and down the Mexican helicopter were all provided to Mexican criminals as part of a baffling and ill-considered scheme initiated by the ATF and Justice Department.

“Gunwalking” is ATF slang for investigations where potentially illegal gun sales are allowed to go forward so that the guns can be used to help trace smuggling routes. Until recently, such obviously risky investigations have been rare.

That changed when the Obama administration in its first few months took up the cause of doing more about the alleged threat of U.S. guns entering Mexico. The White House’s warnings about U.S. culpability in Mexican drug violence—particularly the “90 percent” fiction—were so alarming to the National Rifle Association that the organization gave prescient congressional testimony in March 2009 warning that the White House would make “scapegoats” of lawful U.S. gun owners as a justification to pass more gun regulation to address violence in Mexico.

By the fall of 2009, ATF had launched an operation dubbed “Fast and Furious” that shifted ATF tactics away from seizing guns as soon as possible in favor of gunwalking. Fast and Furious may have allowed as many as 2,500 straw purchases of guns to Mexican gangs with no clear plan for recovering the weapons. The program was so out of control that when Arizona representative Gabrielle Giffords was shot last January, ATF agents immediately feared that the gun would be traced back to Fast and Furious.

And the operation appears to have come right from the top. “This shift in strategy was known and authorized at the highest levels of the Justice Department. Through both the U.S. Attorney’s Office in Arizona and ‘Main Justice’ headquarters in Washington, D.C., the Department closely monitored and supervised the activities of the ATF,” according to a June 14 report produced by the House Oversight and Government Reform Committee.

What’s more, the House report notes, “though many line agents objected vociferously, ATF and DOJ leadership continued to prevent them from making every effort to interdict illegally purchased firearms.” In fact, as early as this past December, months before congressional investigators began probing the issue in earnest, ATF agent Vince Cefalu was publicly speaking out against the agency’s gunwalking operation. Cefalu now reports he was sent a termination notice at the end of June, an action he claims is politically motivated.

The Justice Department has been less than forthcoming with congressional investigators. As of the release of the June 14 congressional report, the ATF and Justice Department had been unresponsive to seven letters and a subpoena from the House oversight committee.

Then over the July 4 holiday, things took an unusual turn. Acting ATF director Kenneth Melson appeared before Senate Judiciary Committee and House Oversight and Government Reform investigators. Remarkably, Melson made the appearance with his private attorney rather than with Justice Department representatives, consistent with Melson’s reported contention that higher-ups in the Justice Department had been trying to muzzle him.

Melson told congressional investigators that the gunwalking operation was part of a special task force being run by the U.S. attorney’s office in Phoenix. Further, even in his capacity heading up the ATF, he had no knowledge of what was going on. Melson’s testimony came in the wake of a June 18 Wall Street Journal report on the Justice Department pressuring him to resign over the scandal. If Melson truly didn’t know the operational details even as the Justice Department was maneuvering to make him the fall guy, it’s no wonder he would get his own attorney, break his silence, and implicate the Justice Department.

It also appears that numerous other law enforcement agencies—including the FBI, DEA, ICE, U.S. Marshals, and Homeland Security—were involved in Fast and Furious to varying degrees. Again, the coordination of that many law enforcement agencies clearly points to involvement at high levels of the Justice Department.

“The evidence we have gathered raises the disturbing possibility that the Justice Department not only allowed criminals to smuggle weapons, but that taxpayer dollars from other agencies may have financed those engaging in such activities,” Representative Daryl Issa, chairman of the Oversight and Government Reform Committee, and Senator Chuck Grassley, ranking member of the Senate Judicary Committee, wrote in a July 6 letter to Eric Holder.

There’s one more disturbing wrinkle that has yet to be ironed out—the role of federally licensed firearms dealers in Fast and Furious. Were they coerced into participating in the operation under threat of losing their licenses as firearms dealers? Troublingly, even if they knowingly made illegal sales to criminals at the behest of law enforcement, that wouldn’t immunize them from prosecution.

In February, the Mexican government retained a U.S. law firm, Reid Collins & Tsai, LLP, to pursue “claims against certain entities and individuals in the U.S. believed to be participating in . . . the illegal manufacture, import/export, or sale of weapons, or other conduct that may be harming Mexico.” That’s according to the Foreign Agents Registration Act paperwork, which must be filed with—yes—the Justice Department before a U.S. law firm can represent a foreign country. Incredibly, Mexico could take U.S. firearms dealers to court for their unwitting and unwilling role in Fast and Furious.

Despite the growing scandal, the White House is moving full steam ahead with planned gun regulations. On July 11, an ATF-Justice Department order went into effect requiring gun dealers in Arizona, California, New Mexico, and Texas to report the purchase of two or more semi-automatic rifles over five days that are greater than .22 caliber and include a detachable magazine, a description so broad it encompasses a huge segment of the commerce in ordinary hunting rifles. The justification, naturally, is stemming the flow of guns into Mexico, even as that rationale is blowing up in the administration’s face.

Taken together, the Mexican government’s legal maneuvering and the Obama executive order raise the unsettling question of whether the White House and Justice Department have coordinated with a foreign country against U.S. gun dealers to help move forward a gun control agenda.

The NRA was quick to slam the executive order, saying, “$40 billion transnational criminal enterprises don’t fill out paperwork and are not deterred by paperwork violations. This is a blatant effort by the Obama administration and ATF to divert the focus of Congress and the general public from their gross incompetence in the Fast and Furious scandal.”

For once, the NRA might be understating things. “Gross incompetence” doesn’t adequately describe what has transpired here. The investigation is far from complete, but the facts so far suggest that the Justice Department and White House are implicated in the needless deaths of two U.S. law enforcement agents. And the level of political collusion suggests they were motivated not by law enforcement concerns, but by a desire to gain traction in implementing a liberal gun control agenda.